Leon Kizer v. U.S. Environmental Protection Agency

Filing 26

ORDER granting ECF No. 25 Stipulation for Extension of Time to File the Discovery Plan/Scheduling Order (sixth or more request). Discovery Plan/Scheduling Order due by 6/7/2018. Signed by Magistrate Judge William G. Cobb on 3/12/2018. (Copies have been distributed pursuant to the NEF - LH)

Case 3:16-cv-00395-LRH-WGC Document 25 Filed 03/09/18 Page 1 of 4

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Douglas R. Brown, Esq., NSB #7620
Lemons, Grundy & Eisenberg
6005 Plumas Street, Suite 300
Reno, NV 89519
[e-mail]
Telephone: [phone]
Facsimile: [phone]
FAEGRE BAKER DANIELS LLP
Jerome A. Miranowski, Esq.
[e-mail]
Jane E. Maschka, Esq.
[e-mail]
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402
Telephone: [phone]
Facsimile: [phone]
Attorneys for Petitioner Leon Mark Kizer

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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Leon Mark Kizer,

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Petitioner,

Case No. 3:16-CV-00395-LRH-WGC

v.

STIPULATION FOR EXTENSION OF TIME
TO FILE DISCOVERY PLAN AND
SCHEDULING ORDER

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United States Environmental
Protection Agency,
Respondent.

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/

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According to Local Rule 26-1, the Parties must submit a stipulated discovery plan and

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scheduling order within 44 days of the filing of the Answer. The Parties have previously

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requested, and the Court has granted, an extension of the deadline six times to allow for a

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possible resolution in this matter: first to December 12, 2016, second to March 13, 2017, third

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to June 12, 2017, fourth to September 10, 2017, fifth to December 11, 2017, and sixth to

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March 11, 2018.

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discussed below, the final resolution of this matter has been delayed by developments in a

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separate litigation.

There has been substantial progress towards this resolution, but as

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US.116859694.01

Case 3:16-cv-00395-LRH-WGC Document 25 Filed 03/09/18 Page 2 of 4

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Now, the Parties, by and through their respective counsel, have agreed and hereby

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stipulate pursuant to Federal Rule of Civil Procedure Rule 6 (b) and Local Rules IA 6-1, IA 6-2,

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7-1, and 26-4 that the deadline for filing a stipulated discovery plan and scheduling order is

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hereby extended 90 days to June 7, 2018.

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This petition involves an objection to a compliance order (the “Compliance Order”)

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issued by the United States Environmental Protection Agency (“EPA”) to Petitioner/Appellee

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Leon Mark Kizer and the Pine View Estates Homeowner’s Association (“PVHOA”).

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The resolution of this petition, in the manner the Parties have been anticipating,

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hinges on the settlement of a related matter. On September 12, 2017, Kizer and PVHOA

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entered into a settlement agreement ("Settlement Agreement") in Kizer v. PTP, Inc. et al, Case

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No. 3:15-CV-00120-RCJ-WGC (D. Nev.) (ECF No. 338). There are over 200 defendants in the

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Kizer case, including all of the individual homeowners in the PVHOA, and the Bureau of Indian

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Affairs (“BIA”). The Settlement Agreement was contingent on the BIA’s approval of the

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transfer of common areas from trust to fee – the BIA holds title to the land comprising the

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PVHOA in trust on behalf of Kizer. The fee lands would serve as collateral for a loan to fund

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the obligations as detailed in the Compliance Order. The BIA approved said trust-to-fee

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transfer on October 18, 2017 and that transfer was contemplated to occur by the end of

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November, 2017.

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On November 8, 2017, the Hon. Robert C. Jones confirmed and approved the

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Settlement Agreement. See Kizer v. PTP, Inc., Case No. 3:15-CV-00120-RCJ-WGC (D. Nev.) (ECF

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No. 452). However, subsequent to Judge Jones’ approval of the Settlement Agreement, a

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dispute arose between Kizer and some of the defendants in the implementation of the

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Settlement Agreement; specifically, attorneys representing the title insurers who are funding

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the Settlement Agreement, as well as attorneys representing individual homeowners, have

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asserted that the BIA has not fully complied with the terms of the Settlement Agreement, and

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by extension, the requirements of the National Historic Preservation Act (“NHPA”) in effecting

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the transfer of land. To date, the issue of whether or not there has been compliance with

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NHPA or the terms of the Settlement Agreement in the Kizer case is still being resolved but

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Case 3:16-cv-00395-LRH-WGC Document 25 Filed 03/09/18 Page 3 of 4

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the parties are approaching a resolution.

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If and when the settlement closes in Kizer v. PTP, Inc., the parties in the case anticipate

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lodging a consent decree in another related case, Pine View Estates Homeowner’s Assoc. v.

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EPA, Case No. 3:16-CV-00402 (D. Nev.), relating to and addressing the Compliance Order. The

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consent decree will need to be negotiated and once finalized and approved by officials at EPA

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and the United States Department of Justice, will be lodged with the Court. The Parties will

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then request that the Court approve and enter the consent decree. The consent decree will

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vacate the Compliance Order as to Kizer and will make the PVHOA solely responsible for the

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wastewater treatment system that is the subject of the Compliance Order. The approval and

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entry of the anticipated consent decree vacating the Compliance Order as to Kizer will moot

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this petition.

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To preserve judicial resources, the Parties in this case stipulate to extend the

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stipulated discovery order and scheduling order deadlines until June 7, 2018. The Parties will

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notify the Court if the settlement closes in the meantime or if the Parties will proceed with

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this petition.

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Dated this 9th day of March, 2018.

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Faegre Baker Daniels LLP
Attorneys for Petitioner

Jeffrey H. Wood
Acting Assistant Attorney General
Environment & Natural Resources Division
Attorney for Respondent

By: ____/s/ Jerome A. Miranowski____
Jerome A. Miranowski
2200 Wells Fargo Center
90 South 7th Street
Minneapolis, MN 55402
[phone]
[e-mail]

By: ___/s/ Michael C. Martinez________
Michael C. Martinez (CA # 275581)
Environmental Defense Section
601 D Street N.W., Suite 8000
Washington D.C. 20004
[phone]
[e-mail]

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Case 3:16-cv-00395-LRH-WGC Document 25 Filed 03/09/18 Page 4 of 4

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IT IS SO ORDERED:
_______________________________________
________________________________
UNITED STATES MAGISTRATE JUDGE
UNITED STATES DISTRICT JUDGE
DATED: __________
DATED: March 12, 2018.

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